Given the current coronavirus COVID-19 pandemic and Governor Polis’ State of Epidemic Disaster Emergency, the legislature deemed it prudent to adjourn for two weeks, returning on March 30, to limit the spread of the coronavirus.
Believing we are the first Colorado legislature to do so, here is the thought process. With one hundred legislators, all with one aide, half that many volunteer interns, 35 or so partisan staff, probably 100 more nonpartisan staff, 15 sergeants enforcing the rules, plus a 100 or so lobbyists and you can see we’ve almost doubled the Governor’s recommendation of avoiding meetings of 250 or more people.
When you add the public that attend daily to testify, the number can easily grow to a thousand or more. As with many first time actions, the process is a little bumpy.
First, Article 5 Section 7 of the Colorado Constitution says, “The general assembly shall meet … no later than the second Wednesday of January each year … .” Regular sessions of the general assembly shall not exceed one hundred and 20 calendar days”. Which means weekends and holidays all count toward the 120 days.
Second, Joint rule 44g in the legislative rule book that governs our daily operations has a provision for the legislature adjourning, and the days not being counted as legislative days only if the Governor has declared a state of disaster due to a public health emergency. Once the disaster is over, the days begin to count consecutively again.
To be clear, the constitution does not use the word “consecutive.” In the bluebook analysis of the 1988 amendment, shortening the length of the session from 140 to 120 days was this statement: “The proposal will guarantee adjournment of the legislature at a date certain … ” implying consecutive calendar days.
In the 1982 constitutional amendment that gave us the 140 days, there was statistical information regarding the length of the sessions, based on consecutive days, both of which could have bearing on a court case, just as our rule 44g could.
What court case? If we were to assume we can add the 14 days, we are out in March to our current May 6, since the date and pass legislation during that period (a lot of legislation as the last two weeks is the busiest), and someone or some industry does not like that legislation I suggest we are ripe for a lawsuit seeking to overturn that legislation.
So, what’s a legislature to do? We ask the courts for an interrogatory proceeding to settle the question. Which is much more complicated than just sending a memo to the chief judge. In a very short time briefs have to be finalized and possible oral arguments have to be prepared by teams of attorneys for both sides of the debate.
My thanks to Senator Bob Gardner SD12, our only serving attorney in the minority and to the Office of Legislative Legal Services for their responses. There are some things you don’t want to take you by surprise.